Applying Legal Expressivism to Motive Review of Adult-Use Zoning

• Author: Elijah Swiney
• Position: Clerk, Hon. Justice Gary R. Wade, Tennessee Supreme Court. J.D., Yale Law School, 2007. B.A., Brown University, 2004
• Pages: 769-808

APPLYING LEGAL EXPRESSIVISM TO MOTIVE

REVIEW OF ADULT-USE ZONING

ELIJAH SWINEY∗

INTRODUCTION

Under 2002’s City of Los Angeles v. Alameda Books,1 zoning laws that

target so-called “adult uses”—usually, either sales of sexually-oriented

books, videos, and novelties; nude or semi-nude dancing; or screening of

sexually-oriented videos—may be held valid under the First Amendment

only if the legitimate purposes of their enactment outweigh any

suppressive purposes.2 These legitimate purposes, the U.S. Supreme Court

has explained, are concerned “not with the content of adult [speech],” but

with its “secondary effects”—issues such as effects on property values,

traffic, crime rates, or development.3 The concept draws a sharp line

between content-related concerns and non-suppressive concerns—a

dichotomy typically taken for granted by courts and commentators.4 On

the ground, however, in the many grassroots campaigns against adult uses

that take place every year,5 the distinction is far from clear.

In April of 2005, for example, a coalition of citizens in Cheboygan,

Michigan, which the Cheboygan Tribune identified as including “[p]astors

and members of nearly every Cheboygan religious congregation,”6 set out

to try to convince their city council to intercede to prevent the issuance of a

business license to Brad Vanatter, an outside developer who intended to

open what would apparently be the city’s first adult video store—

Copyright © 2008, Elijah Swiney.

∗ Clerk, Hon. Justice Gary R. Wade, Tennessee Supreme Court. J.D., Yale Law School,

2007. B.A., Brown University, 2004. The author owes deep thanks to Heather Gerken for

her guidance and suggestions throughout the drafting of this Article. The content of the

Article reflects only the opinions of the author.

1 535 U.S. 425 (2002).

2 Id. at 440–41; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47–48 (1986).

3 Id. See also Bryant Paul et al., Government Regulation of Adult Businesses through

Zoning and Anti-Nudity Ordinances: Debunking the Legal Myth of Secondary Effects, 6

COMM. L. & POL’Y 355, 256 (2001); Philip J. Prygoski, The Supreme Court’s “Secondary

Effects” Analysis in Free Speech Cases, 6 T.M. COOLEY L. REV. 1 (1989).

4 See infra Part II.

5 See Nicole Stelle Garnett, Relocating Disorder, 91 VA. L. REV. 1075, 1106–08 (2005).

6 See, e.g., Mike Fornes, Citizens Oppose Video Store, CHEBOYGAN DAILY TRIB., Apr.

28, 2005, available at http://www.cheboygannews.com/articles/2005/04/28/news/news1.txt.

770 CAPITAL UNIVERSITY LAW REVIEW [36:769

“Fantasies Unlimited”—across from an established shopping center, the

tenants of which included a Christian bookstore.7 The coalition repeatedly

denounced pornography and its perceived immoral and destructive power.

Reverend Gregory Timmins of the Cheboygan Seventh-Day Adventist

Church called pornography “a terrible, terrible scourge,” proclaiming that

it “destroys lives, it destroys marriages, it destroys communities.”8 Laura

Derk, the operator of the aforementioned Christian bookstore implored that

the possibility of Fantasies Unlimited coming to Cheboygan was

“[u]ltimately . . . a spiritual issue,” but added that “if you’re not a believer

it’s at least a moral issue.”9 An online poll administered by the Cheboygan

Tribune garnered a 63.4% response opposing the licensing of any adult

video stores within the city’s limits.10

At first blush, Timmins and Derk’s motives seem clearly to fall into

the category of suppressive concerns. Their opposition was, by their own

words, to pornography itself.11 If a court had found their motives to be the

motives of a municipal government, under the current doctrinal rubric,12

they surely would be held to be suppressive.

However, Cheboygan’s story involves a twist that throws that

assumption for a loop. Shortly after over seventy protesters gathered to

express their concerns to the Cheboygan City Council,13 the Tribune

revealed that a great volume of adult videos was already available for sale

or rent in Cheboygan—yet this availability had created nothing comparable

to the furor surrounding Fantasies Unlimited.14 A preexisting video

store—interestingly called “Family Video”—already legally offered adult

videos from its back room.15 Family Video stocked over 200 adult videos

which customers could either purchase or rent, and adult video rentals

7 Id.

8 Id.

9 Mike Fornes, City Issues License for Adult Store, CHEBOYGAN DAILY TRIB., May 5,

2005, available at http://www.cheboygannews.com/articles/2005/05/05/news/news2.txt.

10 Mike Fornes, Adult Videos Already Available, CHEBOYGAN DAILY TRIB., Apr. 29,

2005, available at http://www.cheboygannews.com/articles/2005/04/29/news/news1.txt.

The poll, of course, is extremely unscientific. However, it at least suggests that some

Cheboyganites supported a total ban.

11 See supra notes 8–9 and accompanying text.

12 See supra notes 1–4 and accompanying text. See also Part IV.

13 Fornes, supra note 6.

14 Fornes, supra note 10.

15 Id.

2008] ADULT-USE ZONING 771

comprised, according to the store’s manager, “a big percentage of our

business.”16

To one interested in suppressing the speech in adult videos, Family

Video’s transgression should seem functionally nearly identical to

Fantasies Unlimited’s. Members of the coalition, however, saw a

difference. Reverend Dale Duverney, of the Cheboygan Church of Christ,

expressed disapproval of Family Video17 but concluded that its model of

selling adult entertainment was “a whole lot different than out in the open

and in your face.”18 Reverend Duverney’s specific aversion to the

conspicuous availability of adult entertainment was echoed by others in his

coalition. Cheboyganite Colette Davis complained, “I don’t think that

visitors to our town come here to see the flashing lights of an adult

bookstore along U.S. 23.”19 Reverend Timmins referred to the experience

of driving through nearby Pellston and seeing their adult video store,

calling it “a blotch on their community.”20

Why would individuals be so concerned with the appearance that

pornography is available for purchase in their communities? The language

of secondary effects21 suggests that this concern might simply be for a

potential loss in property value or increase in crime. The language of the

Cheboygan coalition, however, does not solely rely on assumptions about

property values or crime control.22 Instead, it characterizes the visibility of

Fantasies Unlimited as itself a harm.23 This harm, it seems, goes beyond

the simple availability of adult videos—yet is intimately tied to an

antipathy toward pornography itself.

In recent years, several of the most prominent working legal scholars

have contributed to a growing literature on “expressive” theories of law—

theories that focus on the power of the law to express underlying attitudes,

rather than simply to regulate.24 However, there has been no thorough

16 Id.

17 Id. (arguing that “it should all be run out of town”).

18 Id.

19 Fornes, supra note 6.

20 Id.

21 See supra notes 1–4, 44 and accompanying text.

22 See supra notes 8–9, 19–20.

23 See supra notes 8–9, 19–20.

24 See generally, Matthew D. Adler, Expressive Theories of Law: A Skeptical Overview,

148 U. PA. L. REV. 1363 (2000); Heather K. Gerken, Dissenting by Deciding, 57 STAN. L.

REV. 1745 (2005); Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV.

413 (1999); Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943

(continued)